People v. Tooley CA3 ( 2022 )

Filed 8/18/22 P. v. Tooley CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Shasta)
----
THE PEOPLE,
Plaintiff and Respondent, C094123
v. (Super. Ct. No. 20F1866)
ELIDIA ARLENELALAIN TOOLEY,
Defendant and Appellant.
Defendant Elidia Arlenelalain Tooley contends she is entitled to two days of
conduct credit. Because Penal Code section 1237.11 required her to assert the contention
at sentencing and she did not, her claim is not cognizable on appeal and we will dismiss
the appeal.
1 Undesignated statutory references are to the Penal Code.
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BACKGROUND
Defendant pleaded no contest to vehicular manslaughter and child abuse. Prior to
sentencing she spent two days in custody. The trial court sentenced her to an aggregate
term of five years four months in state prison and awarded her two days of presentence
custody credit for the actual time spent in custody. No conduct credit was awarded and
there was no objection on this ground asserted in the trial court.
While this appeal was pending, defendant’s appellate counsel sent two letters to
the trial court pursuant to section 1237.1 requesting an award of conduct credit. The trial
court denied the request on the ground that a defendant must spend at least four days in
custody for conduct credit to begin accruing.
DISCUSSION
Section 1237.1 provides in pertinent part that no appeal shall be taken on the
ground of an error in presentence custody credit unless the defendant first presents the
claim at sentencing or, if the error is not discovered until after sentencing, the defendant
moves for correction of the record in the trial court. Such a motion may be made
informally in writing. Dismissal of an appeal is necessary where the only issue raised
involves presentence credit and the question was not preserved in the trial court in the
manner required. (People v. Jordan (2018) 21 Cal.App.5th 1136, 1141-1142; People v.
Acosta (1996) 48 Cal.App.4th 411, 425-426.)
At sentencing, defendant did not request conduct credit or object to the trial
court’s award of presentence credit. Although her appellate counsel subsequently sent
two letters to the trial court asking for conduct credit, section 1237.1 permits such a
belated request only when a presentence credit error is not “discovered” until after
sentencing. (§ 1237.1; see People v. Toney (2004) 32 Cal.4th 228, 232 [if the statutory
language is unambiguous, the plain meaning of the statute governs].) Here, however, the
trial court announced the award at sentencing in the presence of defendant and her trial
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counsel, and thus defendant cannot claim the asserted error was not discovered until after
sentencing. Accordingly, her contention is not cognizable on appeal.
DISPOSITION
The appeal is dismissed.
/S/
MAURO, J.
We concur:
/S/
ROBIE, Acting P. J.
/S/
RENNER, J.
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